United Auburn Indian Community of the Auburn Rancheria v. BrownUnited Auburn Indian Community of the Auburn Rancheria v. Brown
Counsel
Bingham McCutchen, Morgan, Lewis & Bockius, Thomas F. Gede and Colin C. West for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Sara J. Drake, Assistant Attorney General, William P. Torngren and Timothy M. Muscat, Deputy Attorneys
Opinion
BLEASE, Acting P. J.—The federal Indian Gaming Regulatory Act (
A competing Indian tribe challenges the validity of the Governor’s concurrence on the ground it constituted an illegal exercise of legislative power, which was neither delegated to the Governor, nor ancillary and incidental to his power to enter into gaming compacts with Indian tribes. We disagree on the ground the exercise of the power of concurrence is not legislative. Because we conclude concurrence is not a legislative power, we need not determine whether it is ancillary and incidental to the Governor’s power to enter into gaming compacts.
The land in question is in Yuba County. The Governor gave his concurrence and simultaneously executed a tribal-state gaming compact for the Yuba
This case involves the interplay of three separate statutory schemes—two federal and one state. First, former section 465 of title 25 of the United States Code, which is now found at
The second statutory scheme is IGRA. (
The third statutory scheme is California’s, and includes the California Constitution.
The Auburn Tribe argues that even though federal law singles out the Governor as the arm of the state that must concur in the Secretary’s determination under IGRA that land acquired after 1988 is suitable for Indian gaming, no state law authorizes the Governor to so act. The Auburn Tribe maintains that such action is a legislative act that must be performed by the Legislature unless delegated to the Governor. The Auburn Tribe argues that the Governor’s power to concur with the Secretary’s determination that land acquired after 1988 is suitable for gaming, is not necessary to the Governor’s authority to negotiate and conclude class III gaming compacts. Therefore, it argues the power to concur cannot be said to be ancillary or incidental to the Governor’s legislative authorization to enter into class III gaming compacts with Indian tribes. It claims that since the power to concur was a legislative act that was not expressly given to the Governor and which cannot be said to be ancillary and incidental to the compacting power, the Governor violated the separation of powers clause of the state Constitution when he concurred in the Secretary’s determination that the land was suitable for Indian gaming. (
We take issue with the Auburn Tribe’s underlying premise that the power to concur in the Secretary’s determination is clearly a legislative power. “The separation of powers doctrine limits the authority of one of the three branches of government to arrogate to itself the core functions of another branch.” (Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 297 (Carmel Valley).) The Legislature’s core function is to pass statutes. (
FACTUAL AND PROCEDURAL BACKGROUND
In 2002 the Enterprise Ranchería of Maidu Indians of California (Enterprise Tribe) submitted a request to the United States Department of the Interior (Department) to acquire a site in Yuba County for the purpose of establishing a casino/hotel resort complex. Pursuant to the IRA, the Secretary is authorized to acquire land, within or without an existing reservation, for the purpose of providing land for Indians. (
In 2005, after the Enterprise Tribe submitted its request to the Department, the Department commenced its environmental review of the project under the National Environmental Policy Act of 1969 (
The Governor indicated his official concurrence with the Assistant Secretary’s determination by letter dated August 30, 2012. The same day, the Governor executed a tribal-state gaming compact between the state and the Enterprise Tribe with regard to the Yuba County site. The Governor is designated by the California Constitution and by statute as the “state officer
Plaintiff Auburn Tribe owns and operates the Thunder Valley Resort and Casino, which is approximately 20 miles from the Yuba County site. The Auburn Tribe filed a petition for writ of mandate and complaint for declaratory relief. The petition and complaint contained two causes of action. The first alleged that the Governor was required to comply with CEQA before concurring in the Secretary’s decision to take lands into trust for the Enterprise Tribe. The second alleged the Governor performed a legislative act when he concurred with the Secretary and when he negotiated and executed the compact with the Enterprise Tribe, in violation of the constitutional mandate of separation of powers.
The Governor demurred to the complaint, and the trial court sustained the demurrer without leave to amend. The trial court found that neither the Governor’s concurrence, nor his negotiation and execution of the compact violated the separation of powers doctrine. The court found that the power to concur with the Secretary’s determination was “ancillary and incidental” to the power granted to him by the state Constitution and by statute to negotiate and execute tribal-state gaming compacts. The trial court found the Governor’s concurrence was not subject to CEQA because it was not a project pursuant to CEQA, and because the Governor is not a public agency. The trial court entered a judgment of dismissal, and the Auburn Tribe appealed.
DISCUSSION
I
Separation of Powers
Although the Constitution places limits on each branch of government with respect to the other branches, “the separation of powers principle does not command ‘a hermetic sealing off of the three branches of Government from
The core constitutional function of the Legislature is to make laws by passing statutes. (
A. The Governor’s Authority Regarding Indian Gaming
Congress has the sole power to acquire land for the federal government, and it is constitutionally empowered to acquire land in trust for Indian tribes. (Confederated Tribes of Siletz Indians v. U.S. (9th Cir. 1997) 110 F.3d 688, 694.) Congress has delegated its power to acquire land in trust for Indian tribes to the Secretary, who “is authorized, in his discretion, to acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of providing land for Indians.” (
However, Congress conditioned the ability of the Secretary to take land into trust for Indian tribes for the purpose of gaming after October 17, 1988, upon the concurrence of the Governor. Acquisition of land after that date is prohibited except, inter alia, where the Secretary makes a determination “that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the
Additionally, Congress required as part of IGRA that class III gaming be conducted in conformance with a compact entered into between the tribe and the state in which the gaming is to be conducted. (
Federal law nominates the Governor as the state representative with the power to concur in the Secretary’s determination to take land in trust for gaming. (
The Auburn Tribe prefaces its separation of powers argument by claiming that while the Legislature violates the separation of powers clause only when it materially impairs the executive branch’s constitutional functions, the Governor’s power is much more restricted. The Governor, it claims, violates the separation of powers clause whenever he or she acts in excess of powers expressly delegated by the Constitution or by statute. Apparently, the Auburn Tribe would have us believe that the Governor possesses no power other than that expressly given to him by the Legislature. The Auburn Tribe cites two cases, neither of which supports this argument.
Harbor v. Deukmejian (1987) 43 Cal.3d 1078 (Harbor) involved the Governor’s constitutional power to veto bills and to veto “items of appropriation while approving other portions of a bill” (
Thus, when the court indicated the Governor could “act only as the Constitution allows” (Harbor, supra, 43 Cal.3d at p. 1087), it was because the partial veto power is legislative, and the California Constitution authorized only a narrow expansion of the veto power, i.e., the power to veto a portion of legislation only if it is an item of appropriation. As the court stated, when “the Governor exercises the veto power, he acts as a ‘legislative instrumentality.’ ” (Harbor, at p. 1087.) Any further expansion of a partial veto power without constitutional authority would have infringed on the legislative power, and was for this reason outside the Governor’s power. Thus, the case supports an argument that the Governor has no power to perform a legislative function absent express authority, but it does not support an argument that the Governor has no power at all unless the power is expressly given by the Constitution or by statute.
Accordingly, the scope of the Governor’s authority over represented employees was governed by the Ralph C. Dills Act (
These cases stand for the unremarkable proposition that the Governor may not exercise a legislative power without express authority from the Legislature. They do not hold that a Governor has no inherent authority without express statutory or constitutional authority. Thus, in determining whether the Governor violated the separation of powers clause, our task is to determine whether the power was legislative or executive in nature.
B. Concurrence Is Not Clearly Legislative
“The characteristics of many powers and duties are so marked that there can be no difficulty in determining whether they belong to the Legislative, Executive or Judicial Departments of the Government. But the lines between the several departments are not defined with precision, and there are other powers and duties that partake of the nature of duties pertaining to more than one of these departments, and may as properly be referred to one as the other, or may not strictly belong to either.” (People ex rel. Attorney Gen. v. Provines, supra, 34 Cal. at pp. 540-541 (conc. opn. of Sawyer, C. J.).) The power to concur in the Secretary’s determination is such a power.
1. Participation in IGRA
Addressing the last argument first, the Auburn Tribe cites two published Attorney General opinions for the proposition that the decision to participate in a federal program is a legislative act over which the Legislature has exclusive power. (62 Ops.Cal.Atty.Gen. 781, 784 (1979); 65 Ops.Cal.Atty.Gen. 467, 469 (1982).) It claims the federal program in which the Governor decided to participate was IGRA. However, the Governor did not make the decision to participate in IGRA, because the Legislature had already decided to participate in IGRA.
IGRA provides in part that in order for an Indian tribe to conduct class III gaming activities on its lands, the state in which the lands are located must permit such gaming, and such gaming must be conducted in conformance with a tribal-state compact entered into with the state.2 (
2. Land Use Policy
The Auburn Tribe argues that in concurring with the Secretary’s determination, the Governor was setting land use policy by allowing land to be used for gaming that had not previously been used for gaming. However, the mere fact that the Governor’s concurrence had some land use consequences and involved a policymaking component, does not make the action a legislative function. The Auburn Tribe cites two cases to support this argument, neither of which is on point.
Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 522-523, held that zoning ordinances make land use policy and are therefore legislative in nature. Arnel concerned an initiative ordinance that rezoned a 67.6-acre piece of property to single-family residential, after the city had approved a plan rezoning the property to a higher density, and approved a plan that would allow 127 single-family residences and 539 apartment units on the property. (Id. at p. 515.) In response to the development company’s argument that the initiative ordinance was invalid because it was adjudicative in nature since the size and number of parcels affected were small, the Supreme Court held that regardless of size, a zoning ordinance is a legislative act. (Id. at pp. 515, 523-525) The court distinguished zoning ordinances, which make land use policy, from such decisions as variances and subdivision map approvals, which apply land use policy and are adjudicative in character. (Id. at pp. 523-524)
Mira Development Corp. v. City of San Diego (1988) 205 Cal.App.3d 1201, 1213-1217, also cited by the Auburn Tribe, held that the city’s denial of an application to rezone property was a legislative act that could be overturned only if it had no reasonable relation to the public welfare.
These cases stand for the proposition that zoning ordinances are legislative in nature because they make land use law. Ordinances passed by local bodies are legislative in the sense that they are the equivalent of statutes passed by the state legislature. The cited cases do not hold that any decision by a governmental entity that involves land use or considers policy is legislative. “There are three general types of actions that local government agencies take
The act contemplated here is not a zoning ordinance. It concerns land use, and takes policy matters into consideration, but so do such adjudicative matters as subdivision map approvals and variances. Such factors do not make the Governor’s concurrence a legislative act any more than they make it an adjudicative act.
3. Tax Policy
The Auburn Tribe also argues the Governor’s concurrence changed the tax base for the property, that this amounted to setting tax policy, and that as such it was a solely legislative act. In support of this argument, the Auburn Tribe cites Jackson & Perkins Co. v. Stanislaus County Board of Supervisors (1959) 168 Cal.App.2d 559, which held that rose plants cultivated for sale were not exempt from ad valorem tax pursuant to a constitutional exemption for growing crops. In so holding, the court noted that what is and is not to be taxed is a matter of legislative policy. (Id. at p. 564)
The Auburn Tribe also cites Cullinan v. McColgan (1947) 80 Cal.App.2d 976, which involved the construction of an income tax statute. The California Personal Income Tax Act was passed and first became effective in 1935. (Cullinan v. McColgan, at p. 978.) The act provided that income be computed on the basis of the taxpayer’s annual accounting period. (Id. at p. 977.) The tax commissioner promulgated a regulation stating that income accrued prior to January 1, 1935, was not taxable and need not be reported. (Id. at pp. 977-978) The court found no justification in the statute for this interpretation. For this reason, the court held that the commissioner’s rule amounted to legislative action by the commissioner. (Id. at p. 981)
The Governor’s concurrence does not broadly set tax policy for the state. The concurrence is unlike a tax statute that determines on a statewide basis what property is and is not to be taxed. Moreover, as the Governor points out, the Secretary has the authority to take the land into trust for an Indian tribe,
We also take issue with the Auburn Tribe’s premise that policy decisions are inherently legislative. “The Legislature is charged, among other things, with ‘mak[ing] law . . . by statute.’ (
4. Concurrence Has Executive Characteristics
The act of concurring, the act at issue here, is in the nature of an executive act because it involves the implementation of California’s existing Indian gaming policy. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. U.S. (7th Cir. 2004) 367 F.3d 650, 664-665 (Lac Courte), cited by the trial court, makes this point, and is persuasive authority. There, in the face of the Wisconsin Governor’s refusal to concur with the Secretary’s finding that taking the property into trust for gaming would not be detrimental to the surrounding community, the tribes claimed the gubernatorial concurrence provision of
Lac Courte held that the Wisconsin Constitution and statutes had already implemented a “fairly complex gaming policy.” (Lac Courte, supra, 367 F.3d at p. 664.) The gaming policy noted by the court was the state-operated
Likewise here, the Governor’s concurrence did not create California’s tax, land use, or gaming policy. Instead, the Governor was informed by these policies when he made his decision.
The Auburn Tribe attempts to distinguish Lac Courte because it relied on Wisconsin’s existing gaming policy, whereas California has no existing policy with respect to gaming on post-1988 tribal land. We see no such limitation in Lac Courte. It, too, involved the governor’s authority to concur with a decision on post-1988 tribal land gaming, but the opinion discussed no prior post-1988 tribal land gaming policy, only Wisconsin’s policy to allow bingo games and track races. In fact, the court noted that casino gambling was not permitted in Wisconsin. (Lac Courte, supra, 367 F.3d at p. 664)
California, like Wisconsin, has a fairly detailed statutory scheme governing Indian gaming. In addition to
The Auburn Tribe’s reading of the provision is too narrow. The Governor did not negotiate a compact for the conduct of gaming on non-Indian land. The gaming would occur, and could only occur, if the land became Indian land. Thus, the gaming would be conducted on Indian land, just as the state Constitution provides. The Constitution does not specify when the negotiations may occur, only that whatever gaming is permitted must be conducted on Indian lands. The timing of the negotiations did not exceed the Governor’s power.
II*
We need not reach this issue since we have concluded that the power to concur was executive, rather than strictly legislative, and that by exercising the power the Governor did not violate the separation of powers clause of the state Constitution.
Just prior to oral argument, the Auburn Tribe requested we take judicial notice of several documents that were not in existence at the time of briefing, and which the Auburn Tribe claims support its argument that the Governor’s authority to concur is not incidental to, but rather is separate and apart from his authority to negotiate and execute compacts with Indian tribes. The documents consist of letters from the office of the Secretary to the tribal chairpersons attaching “Secretarial Procedures” for the conduct of class III gaming on post-1988 tribal lands, both on the land at issue here and on land where another gaming facility is proposed. The Auburn Tribe submitted this material to show that the Governor’s authority to concur is not a power that is incidental to his authority to conclude compacts, since concurrence may occur without compacting. Since we do not reach the issue of whether the authority to concur is incidental to the authority to compact, the documents are not material to our determination, and we deny the requests for judicial notice. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.)
* See footnote, ante, page 36.
DISPOSITION
The judgment is affirmed.
Hull, J., and Butz, J., concurred.
Appellant’s petition for review by the Supreme Court was granted January 25, 2017, S238544.